SECTION II | STATE LEGISLATORS AND PROTECTED LEGISLATIVE CONDUCT
Following Tenney, courts in 1983 cases readily applied its reasoning to state legislators who voted for certain legislation20 or housekeeping resolutions.21 Legislators' participation in committee work22 and on a statutory commission23 has also been covered by the Tenney reasoning. These activities are clearly legislative acts and are properly protected. Furthermore, since Tenney, the Supreme Court has elaborated on the attributes of legislative acts under the Speech or Debate Clause upon which Tenney so heavily relied.24 It stated that for purposes of congressional immunity, protected matters under that clause "must be an integral part of the deliberative and communicative processes by which members participate in Committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House."25 Applying this standard to "legislative acts," the Court held in one case that Speech or Debate Clause absolute immunity does not extend to a Senator's alleged private arrangement with a private publisher to publish the Pentagon Papers,26 and indicated in a subsequent case that a congressman who arranges for the public (as distinguished from internal) distribution of committee materials allegedly infringing upon the rights of individuals is similarly not absolutely immune.27 The Court's reasoning in these cases is that, despite arguments for a legislative "informing function," such acts go beyond the reasonable requirements of the legislative function.
Circuit courts have also been sensitive to those situations in which legislators act officially but not legislatively. Several circuits have held that under those circumstances absolute immunity is inappropriate. In a recent New Jersey district court decision,28 the court concluded that absolute immunity did not protect state legislators who were accused of improperly excluding another legislator from a party caucus. While sufficient state involvement was found for state action purposes, the court merely asserted that this was an area in which legislators traditionally did not act.
Davis v. Passman,29 a better reasoned opinion, involved the official immunity of a congressman sued for damages for sex discrimination against a staff employee. The Fifth Circuit curtly rejected the congressman's defense of absolute immunity. The court first observed that "the constitutional proscription of blatant sex discrimination does not impair [the defendant's] legitimate control over his staff to any extent at all."30 Next, after canvassing the Speech or Debate Clause cases, the court concluded that "legislators are not legislating when they dismiss staff members. For the same reasons that the Speech and Debate clause does not extend to staff dismissals, [the defendant] cannot invoke absolute immunity."31
The Fifth Circuit's insistence that "the immunized act must be intimately cognate to the legislative process"32 is similarly appropriate in a 1983 context. As observed, the Tenney Court reasoned from both the historical purpose of the Speech or Debate Clause and the concern, in the Fifth Circuit's words, "that the prospect of an unsuccessful but burdensome lawsuit might affect a legislator's performance of his or her legislative duties, thus distorting the democratic process."33 There is thus a class of cases in which a state legislator acting within his official capacity may be denied an absolute immunity because his act is not legislative in nature. Further, such a result may occur even where the state legislator has acted with a reasonable good faith belief that he has absolute immunity. It is true that this is not discussed in Davis, Tenney, or any of the Speech or Debate Clause cases (perhaps because it was not raised). Still, these cases appear to use an objective test for the "legislative act" inquiry, with no attention paid to the legislator's state of mind.34 However, the state of mind of a legislator denied an absolute immunity is certainly relevant to the application to him of a qualified immunity.35
Footnotes
You might need to reference it during your pursuit of justice.
For instance, you might need to examine this passage in order to protect yourself from judges/lawyers/organizations who break the law (see this example of a Florida judge who outright committed perjury).
Nevertheless – and as always – please get the justice you deserve.
Sincerely,
www.TextBookDiscrimination.com
